PAUL A. ENGELMAYER, District Judge.
In or about 1974, plaintiffs Herman Kelley and Bessie Banks co-wrote a song, "Try to Leave Me If You Can" ("Try" or the "Composition"). In 2012, they allege, "Try" was infringed when defendant John David Jackson (referred to here by his professional name, "Fabolous") recorded the song "For the Love" ("Love"), within which portions of "Try" were "sampled." On April 22, 2014, plaintiffs, proceeding pro se, brought this lawsuit against Fabolous, UMG Recordings, Inc. ("UMG"),
On October 19, 2015, the Court dismissed the Amended Complaint in its entirety. It dismissed plaintiffs' copyright infringement claim for lack of standing, but granted plaintiffs leave to replead that claim, in the event they could allege specific facts to support ownership of the Composition. It dismissed plaintiffs' state-law claims with prejudice, because they were preempted by, or sought damages outside the scope of, the Copyright Act.
On February 23, 2016, plaintiffs filed a Second Amended Complaint ("SAC"). It repleads each of plaintiffs' previous claims, and brings new claims for copyright infringement of the master sound recording of "Try" (the "Recording") and unfair competition.
UMG now moves, on behalf of itself, IDJMG, and DJR, to dismiss the SAC in its entirety, under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, that motion is granted in part and denied in part.
In or about 1974, plaintiffs and Frank Green, a non-party, co-wrote and produced "Try," a musical composition. SAC, at 2; AC, Ex. F. That year, the "Try" Recording was made, with Banks as artist, and Kelley and Argon Productions ("Argon") as co-producers. See SAC, at 7-8; id., Ex. P.
On June 14, 1974, plaintiffs and Green transferred to the New York Times Music Corporation ("NYT") and Eden Music Corp. ("Eden") all their legal rights in the Composition, in exchange for specified royalties. Pl. Opp. Br. 4-7; id., Exs. 7-8 (the "June 1974 Contract"). Later that year, the Composition was registered with the United States Copyright Office, with the registration number Eu513738. AC, Ex. F (the "1974 Registration"). Plaintiffs and Green are listed as the co-authors of the Composition; NYT and Eden are listed as the copyright claimants. Id. On August 1, 1974, Kelley entered into an agreement with Argon (the "August 1974 Agreement"), whereby Argon agreed to pay Kelley royalties based on sales of the Recording. See SAC, Ex. P.
The SAC alleges that NYT's and Eden's shared music catalogue was later "transferred from company to company[,] . . . but [i]n 1997, all rights to the catalogue which included [`Try'] [] legally reverted to Eden [] and its founder (Clyde Otis) who then transferred the catalogue to his other publishing company `Iza Music [Corporation]', where [the Composition] resides to date." Id. at 10. Presently, the SAC alleges, Iza Music Corporation ("Iza") is administered by The Clyde Otis Music Group ("Clyde Otis"), id, which is affiliated with Argon, see AC, Ex. K.
On April 18, 1994, Kelley entered into a "popular songwriters renewal contract" (the "1994 Contract") with Iza, which superseded the June 1974 Contract as to Kelley. Pl. Opp. Br. 5; see AC, Ex. L. Under that contract, Kelley transferred to Iza — in exchange for licensing royalties — "any and all rights and interests whatsoever" that he possessed or might acquire in the Composition. AC, Ex. L, at 1; id. at Schedule A. Banks remains bound by the June 1974 Contract. Pl. Opp. Br. 5.
Sometime before November 22, 2012, Fabolous, who the SAC claims is under an "exclusive contract" with DJR, recorded "Love." SAC, at 2, 8. The SAC alleges that, "[e]mbedded within [`Love'] [is] a sample taken from [`Try']. . . . The sample . . . is a substantial sequence that plays throughout [`Love']." Id. at 2. On November 22, 2012, DJR and DSR released "Love" on a CD titled "Fabolous Soul Tape 2 Mix Tape." Id.
The SAC alleges that "Love," and the Projects featuring it, quickly achieved "widespread popularity." Id. at 3. "Love" "enjoyed repeated radio play . . . on several notable radio stations," such as WBLS 107.5 and Power 105.1. Id. The "Fabolous Soul Tape 2 Mix Tape" "reached `double platinum' status and was recognized as one of the `Top Mixtapes of 2012', having been viewed more than 2.3 million times, downloaded nearly one million times, and streamed nearly 600,000 times." Id. And the "Love" music video received more than 140,000 views. Id. at 4.
On March 24, 2014, Deborah Evans, a representative of Clyde Otis, sent a letter to Ian Allen, a representative of DJR and UMG, notifying him that "Try" had been sampled in "Love." AC, Ex. K. The letter stated that Clyde Otis/Argon owned all rights in the Recording, and requested a "non-recoupable fee" for Fabolous's use of it in "Love." Id. In response, the SAC alleges, DJR "refused to obtain a license." SAC, at 3. This refusal, plaintiffs claim, evinces defendants' "willful infringement" of plaintiffs' copyright. Id. at 2.
On August 23, 2014, after this action had commenced, Isidro Otis sent Kelley a letter, notifying him that Clyde Otis had decided not to pursue copyright infringement claims against Fabolous for his alleged infringement of the Composition. AC, Ex. M. The letter also stated that Clyde Otis had "no objection to [plaintiffs] pursuing this matter independently." Id.; see SAC, at 4. Sometime thereafter, Otis submitted a declaration to the Court attesting that Argon is the "sole owner" of the Recording and "endorse[s]" plaintiffs' infringement claim regarding both the Composition and the Recording. Pl. Opp. Br., Ex. 20.
On April 22, 2014, plaintiffs filed the original Complaint. Dkt. 2. On August 27, 2014, they filed the Amended Complaint. Dkt. 10. It brought claims for (1) copyright infringement of the "Try" Composition, (2) violation of plaintiffs' "poetic license," (3) "fraudulent deceit and conspiring to swindle," and (4) mental anguish. Id. at 2-9. Each claim was based on Fabolous's alleged sampling of "Try" in "Love." Id. Plaintiffs sued, in addition to Fabolous, DSR and Kila, as "affiliated companies also involved in wrongfully using plaintiff[s'] song." Id. at 2. They sued UMG, IDJMG, and DJR, as the alleged parent companies of DSR and Kila. Id.
On June 2, 2015, UMG filed a motion to dismiss the Amended Complaint, or, alternatively, for summary judgment. Dkt. 48. It represented that IDJMG and DJR are unincorporated divisions of UMG; accordingly, its motion was also on behalf of those entities. Id. at 1 n.1.
On October 19, 2015, the Court granted UMG's motion to dismiss the Amended Complaint in its entirety. Dkt. 70 (the "October 19 Decision" or "Decision"), reported at Kelley v. Universal Music Grp., No. 14 Civ. 2968 (PAE), 2015 WL 6143737 (S.D.N.Y. Oct. 19, 2015).
The Court granted plaintiffs leave to replead "one final time, but only as to their copyright infringement claim under the Copyright Act." Id. at 12. It noted that, "guided by [the Court's] decision, plaintiffs may be able . . . to adequately plead standing to bring such a claim, by alleging concrete facts supporting either actual or beneficial ownership as to [the Composition]." Id. The Court did not, however, grant plaintiffs leave to replead their other three claims, which it dismissed with prejudice. Id.
On February 23, 2016, plaintiffs filed the SAC. Dkt. 78. It repleads each claim in the Amended Complaint, and brings new claims for (1) copyright infringement of the Recording, and (2) "violation of intellectual property." Id. at 4-8, 10-14.
On March 23, 2016, UMG moved, on behalf of itself, IDJMG, and DJR, to dismiss the SAC, Dkt. 81, and filed a memorandum of law, Dkt. 82 ("Def. Br."), and a declaration by its counsel, Dkt. 83 ("Bart Decl."), in support. On May 26, 2016, plaintiffs filed an opposition brief, Pl. Opp. Br., and attached exhibits. On June 16, 2016, UMG replied. Dkt. 90 ("Def. Reply Br.").
To survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead sufficient factual allegations "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will only have "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is properly dismissed where, as a matter of law, "the allegations in a complaint, however true, could not raise a claim of entitlement to relief." Twombly, 550 U.S. at 558.
For the purpose of resolving a motion to dismiss, the Court must accept as true all well-pled factual allegations in the complaint, and draw all inferences in the plaintiff's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). However, that tenet "is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. A pleading that offers only "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.
The Court is "obligated to construe a pro se complaint liberally," Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), interpreting it "to raise the strongest arguments that [it] suggest[s]," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citation omitted). However, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (internal quotation marks and citation omitted). The Court may not read into pro se submissions claims inconsistent with the pro se litigant's allegations, see Phillips v. Girdich, 408 F.3d 124, 127 (2d Cir. 2005), or arguments that the submissions themselves do not "suggest," Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (citation omitted).
The SAC brings claims for (1) copyright infringement of the Composition, (2) copyright infringement of the Recording, (3) violation of intellectual property, (4) violation of plaintiffs' poetic license, (5) fraudulent deceit and conspiring to swindle, and (6) mental anguish. UMG moves to dismiss both copyright infringement claims for lack of standing. UMG also challenges the second of those claims on the ground that it exceeds the scope of plaintiffs' limited right to replead. UMG challenges the "violation of intellectual property" claim on the grounds that it (1) exceeds the scope of plaintiffs' right to replead, and (2) is preempted by the Copyright Act. Finally, UMG challenges the SAC's last three claims on the grounds that they (1) were dismissed with prejudice in the October 19 Decision, and (2) fail for the same reasons set forth in that decision. The Court addresses each challenge in turn.
The SAC repleads plaintiffs' claim for copyright infringement of the "Try" Composition, which the Court dismissed without prejudice in the October 19 Decision. SAC, at 4-8; Decision, at 6-9, 12. UMG again moves to dismiss this claim for lack of standing.
"Under the Copyright Act, only `the legal or beneficial owner of an exclusive right under a copyright' has standing to sue for infringement." Harris v. Simon & Schuster, Inc., 646 F.Supp.2d 622, 632 (S.D.N.Y. 2009) (quoting 17 U.S.C. § 501(b)); see also Russian Entm't Wholesale, Inc. v. Close-Up Int'l, Inc., 482 F. App'x 602, 604 (2d Cir. 2012) (summary order). A "beneficial owner" for this purpose includes "an author who ha[s] parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees." Cortner v. Israel, 732 F.2d 267, 271 (2d Cir. 1984) (quoting H.R. Rep. No. 1476, 94th Cong., 2d Sess. 159, reprinted in 1976 U.S. Code Cong. & Ad. News 5659, 5775) (internal quotation marks omitted); see also id. ("When a composer assigns copyright title to a publisher in exchange for the payment of royalties, an equitable trust relationship is established between the two parties which gives the composer standing to sue for infringement of that copyright.").
In the October 19 Decision, the Court held that plaintiffs lacked standing to bring their copyright infringement claim because they had not adequately pleaded ownership of the copyright in the Composition. Decision, at 6-9. To support their claim, plaintiffs had attached to the Amended Complaint the 1974 Registration and the 1994 Contract. See AC, Exs. F, L. Those documents, the Court held, were insufficient to establish either legal or beneficial ownership: The 1974 Registration identified NYT and Eden, not plaintiffs, as the legal copyright owners. Decision, at 6-7. And the 1994 Contract did not support that plaintiffs had retained a beneficial interest in the copyright. Under that contract, Kelley purported to transfer to Iza all rights he held in the Composition in exchange for licensing royalties. Id. at 6. Critically, however, the contract "d[id] not establish that . . . plaintiffs by then had acquired rights in [the Composition] from the owners of such rights (i.e., NYT and Eden), such that [Kelley] could transfer [them] to [Iza]." Id. at 7-8. In other words, the Court noted, the 1994 Contract "presuppose[d], but d[id] not establish, that plaintiffs owned" rights in the Composition. Id. at 8. Accordingly, it held, plaintiffs had not adequately pleaded standing to sue for copyright infringement. Id. at 8-9. In granting plaintiffs a right to amend that claim, the Court advised that to survive dismissal, plaintiffs would need to allege "concrete facts supporting either actual or beneficial copyright ownership as to [the Composition]." Id. at 12.
The SAC does not do so. Instead, it again relies primarily on the 1974 Registration and the 1994 Contract. See SAC, at 7. It also attaches royalty statements and a check from Clyde Otis and Broadcast Music Inc., documenting royalty payments from those organizations to Kelley for use of the Composition. Id., Exs. N, O, R. But, as UMG pointed out in its renewed motion to dismiss, those documents "fail to establish beneficial ownership for the same reasons that the 1994 [Contract] did not support beneficial ownership." Def. Br. 8. That is, they "merely support the allegation that Kelley received a royalty stream on the Composition" — but they "do not establish that [p]laintiffs ever owned a copyright interest in the Composition." Id. And the SAC, like the Amended Complaint, does not allege any facts that would support an inference that plaintiffs either (1) owned the original copyright in the Composition and transferred it to Eden and NYT in exchange for royalties before the 1974 Registration; or (2) acquired copyright ownership after 1974 such that Kelley could transfer rights in the Composition to Iza in the 1994 Contract. See id. at 7 (citing SAC, at 4-8).
Plantiffs' opposition brief, however, cures that deficiency. In it, plaintiffs allege that, as the authors of the Composition, they automatically acquired exclusive rights in the Composition "from the time the work [was] created in fixed form." Pl. Opp. Br. 5 (quoting www.copyright.gov) (internal quotation marks omitted); see also Thomson v. Larson, 147 F.3d 195, 205 (2d Cir. 1998) ("The Copyright Act declares that `[c]opyright in a work protected under [Title 17] vests initially in the author or authors of the work.'" (quoting 17 U.S.C. § 201(a)). In June 1974, they allege, they transferred those rights to NYT and Eden, "sign[ing] off as [the] sole owners of [`Try']," in exchange for royalties. Pl. Opp. Br. 5-7 (citing June 1974 Contract). Accordingly, plaintiffs claim, "it was [from their] ownership that [NYT and Eden] obtained ownership of the [`Try'] composition," before they registered it with the Copyright Office. Id. at 7. And, because plaintiffs "parted with legal title to the copyright in exchange for percentage royalties," they argue, they "are entitled to claim beneficial copyright infringement." Id. at 7-8 (internal quotation marks and citation omitted).
Plaintiffs are correct. The allegations in their opposition brief, which are consistent with the June 1974 Contract attached to it, are sufficient to establish their beneficial ownership of the Composition. See, e.g., Cortner, 732 F. 2d at 270-71 (music composers retained sufficient beneficial interest in copyright to sue under Copyright Act where they transferred their rights in theme song to TV network in exchange for royalties); Jones v. Virgin Records, Ltd., 643 F.Supp. 1153, 1156-57 (S.D.N.Y. 1986) (plaintiffs "retained a sufficient beneficial interest in [their] song to have standing to sue for any infringement of [its] copyright," where they assigned legal title to music publisher in exchange for right to royalties); id. at 1157 (assignment contract sufficient to establish beneficial ownership on summary judgment); Kamakazi Music Corp. v. Robbins Music Corp., 534 F.Supp. 69, 74 (S.D.N.Y. 1982) (Barry Manilow was "proper plaintiff[] to bring an action . . . for copyright infringement . . . since he transferred legal title to the subject copyrights in exchange for a percent of the royalties based on sales or license fees").
Revealingly, UMG, in its reply brief, foregoes any argument to the contrary. See Def. Reply Br. 4-5. Instead, it argues that the Court should not consider plaintiffs' "new allegations . . . and documents that were not included, or even referenced, in the SAC." Id.
That argument is not without merit. And were plaintiffs represented by counsel, the Court would decline to consider any matters introduced for the first time in their opposition brief. See Cromwell v. N.Y.C. Health & Hosps. Corp., 983 F.Supp.2d 269, 272 (S.D.N.Y. 2013) ("Courts may not `consider matters outside the pleadings in deciding a motion to dismiss for failure to state a claim.'" (quoting Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 202 (2d Cir. 2013)).
Accordingly, the interests of fairness and efficiency both counsel in favor of treating plaintiffs' allegations regarding the June 1974 Contract, and the contract itself, as cognizable on this motion. Because these are adequate to plead standing to bring a claim for copyright infringement as to the Composition, UMG's motion to dismiss that claim is denied.
The SAC adds a new claim for copyright infringement of the "Try" Recording. See SAC, at 7-8.
UMG is correct. The declaration by Isidro Otis indicates that Argon is the "sole [legal] owner" of the Recording. Pl. Opp. Br., Ex. 20.
Indeed, in their opposition brief, plaintiffs concede that they have no ownership interest in the Recording. See Pl. Opp. Br. 11 ("Plaintiff H. Kelley is not claiming ownership of the Master Recording, he only declares that he was wrongfully and willfully deprived of his share of the production credits and royalties which would have been granted within the license agreement, if defendants . . . had obtained a license from [Argon]."); id. at 12 ("Plaintiffs are not claiming Beneficial Copyright Infringement for [the Recording]. They are only claiming that they are being deprived of their royalties and their writers, artist, and producer credit acknowledgments."). And they do not allege that they have an exclusive license to it. Accordingly, they lack standing to bring their claim for sound-recording infringement. See Newsome v. Brown, 209 F. App'x 11, 13 (2d Cir. 2006) (summary order) ("Since Newsome is neither the legal, nor beneficial owner of Song 2's renewal term, she lacks standing to bring a claim for its infringement.") (citing 17 U.S.C. § 501(b)); Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 32 (2d Cir. 1982) ("The Copyright Act authorizes only two types of claimants to sue for copyright infringement: (1) owners of copyrights, and (2) persons who have been granted exclusive licenses by owners of copyrights.") (citing 17 U.S.C. § 501(b)).
The SAC also brings a new claim labeled "violation of intellectual property." SAC, at 10-11. It alleges that:
Id.
The Court construes this as a claim for unfair competition under New York law. See Lorillard Tobacco Co. v. Jamelis Grocery, Inc., 378 F.Supp.2d 448, 456 (S.D.N.Y. 2005) ("The essence of the tort of unfair competition under New York common law is the bad-faith misappropriation, for the commercial advantage of one person, [of] a benefit or `property' right belonging to another [person]." (internal quotation marks and citations omitted)). UMG argues that this claim must be dismissed as preempted by the Copyright Act. Def. Br. 12; Def. Reply Br. 3-4. UMG is correct.
Section 106 of the Copyright Act "affords a copyright owner the exclusive right to: (1) reproduce the copyrighted work; (2) prepare derivative works; (3) distribute copies of the work by sale or otherwise; and, with respect to certain artistic works, (4) perform the work publicly; and (5) display the work publicly." Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir. 1992) (citing 17 U.S.C. § 106(1)-(5)). A state-law cause of action is preempted by the Copyright Act if "the subject matter of the state-law right falls within the subject matter of the copyright laws and the state-law right asserted is equivalent to the exclusive rights protected by [§ 106]." Kregos v. Associated Press, 3 F.3d 656, 666 (2d Cir. 1993) (internal citation omitted); see 17 U.S.C. § 301(a) ("[A]ll legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright . . . are governed exclusively by this title. . . . [N]o person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State."). "Whether a state law claim is preempted depends on whether it is derivative of a copyright claim or is based on an `extra element' beyond those of a copyright claim." Weber v. Geffen Records, Inc., 63 F.Supp.2d 458, 462 (S.D.N.Y. 1999).
Here, the essence of plaintiffs' unfair competition claim is that defendants have violated their exclusive rights to reproduce or prepare derivative works of the "Try" Composition and/or Recording.
The SAC also repleads plaintiffs' state-law claims for (1) violation of plaintiffs' poetic license, (2) fraudulent deceit and conspiring to swindle, and (3) mental anguish. SAC, at 11-14. These claims are materially identical to those that the Court dismissed with prejudice in the October 19 Decision. See Decision, at 10-12; AC, at 6-9. As the Court warned plaintiffs in its Order of March 3, 2016, "to the extent that a claim was previously brought and dismissed with prejudice, the Court will not permit plaintiffs to replead it." Dkt. 80; see Feinman v. Schulman Berlin & Davis, 677 F.Supp. 168, 173 (S.D.N.Y. 1988) ("Plaintiffs obviously may not replead as to matters which the Court has dismissed with prejudice."); Black's Law Dictionary (10th ed. 2014) (defining "dismissal with prejudice" as "[a] dismissal . . . barring the plaintiff from prosecuting any later lawsuit on the same claim"). Accordingly, these claims must also be dismissed.
Even if the Court had permitted plaintiffs to replead these claims, they would again fail for the reasons stated in the October 19 Decision: They are "either preempted by or seek damages outside the scope of the Copyright Act." Decision, at 12.
As to the "violation of poetic license" claim, the SAC alleges that plaintiffs and their co-writer and publisher "maintain exclusive rights under copyright law to make creative changes in their copyrighted work." SAC, at 13. Defendants, it claims, violated plaintiffs' "poetic license rights" by "wrongfully and willfully act[ing] as though were the writers of [`Try'] by extracting a specific section of it (sample) from the original master and in doing so, ma[king] unauthorized alterations that speeded up the tempo, [and] distorted and damaged the musical and vocal characteristics of [the] song." Id. As the Court noted in the October 19 Decision, "the gravamen of [this] claim is that defendants have violated plaintiffs' exclusive right to prepare derivative works of the `Try' composition, which is a right conferred under the Copyright Act." Decision, at 11 (citing 17 U.S.C. § 106(2)). It is, therefore, preempted.
As to the fraudulent deceit/conspiring to swindle claim, the SAC alleges that defendants "w[ove] a web of confusion" by posting "Love" for free on some websites, while posting it for sale on others, thereby "imply[ing] that [it] was for promotional use only." SAC, at 14.
Finally, as to the "mental anguish" claim, the SAC alleges that, because of the purported infringement, Kelley has "suffered from feelings of distress, anxiety and depression, which interferes with his creative ability, hinders his inspiration to write and consequently stagnates his income." SAC, at 11; see also id. ("Mental anguish and it's [sic] social effects has personally affected [Kelley] by knowing that word had spread among his friends who knew he was being deprived of his entitlements."). "These losses are harmful to both plaintiffs," the SAC alleges, "because they deprive them of the means to benefit from their bundle of rights as beneficial copyright owners." Id. at 12. As the Court noted in the October 19 Decision, it understands these allegations, although presented as a claim of liability, to describe a category of alleged damages which plaintiffs seek to recover. See Decision, at 12.
For the foregoing reasons, the Court grants UMG's motion to dismiss all claims in the SAC, save the copyright infringement claim as to the Composition. Plaintiffs may proceed to discovery on that claim. As per its practice in pro se cases, the Court, by separate order, is referring this case to the assigned Magistrate Judge (Hon. James C. Francis IV) for general pretrial supervision.
The Clerk of Court is respectfully directed to terminate the motions pending at docket numbers 81 and 91.
SO ORDERED.
To the extent plaintiffs intend to bring a fraudulent misrepresentation claim, that claim also fails, because the SAC does not allege "justifiable reliance." "Under New York law, `[t]o state a cause of action for fraud, a plaintiff must allege a representation of material fact, the falsity of the representation, knowledge by the party making the representation that it was false when made, justifiable reliance by the plaintiff and resulting injury.'" Lerner v. Fleet Bank, N.A., 459 F.3d 273, 291 (2d Cir. 2006) (quoting Kaufman v. Cohen, 760 N.Y.S.2d 157, 165 (1st Dep't 2003)). "Where the claim is premised on concealment. . ., the complaint must still allege: (1) what the omissions were; (2) the person responsible for the failure to disclose; (3) the context of the omissions and the manner in which they misled the plaintiff; and (4) what the defendant obtained through the fraud." Warren v. John Wiley & Sons, Inc., 952 F.Supp.2d 610, 621 (S.D.N.Y. 2013) (internal quotation marks and citation omitted). Here, the SAC can arguably be construed as alleging that defendants, on occasion, failed to disclose their commercial exploitation of the "Love" recording. But it does not allege — much less with the specificity required by Federal Rule of Civil Procedure 9(b) — that plaintiffs were misled by that misrepresentation. And any such inference is belied by the allegation that defendants openly offered the Projects for sale on multiple websites. See SAC, at 14; AC, Exs. I(a)-(b). This allegation evinces plaintiffs' awareness of defendants' commercial exploitation of the allegedly infringing recording.
